Unanimous Death Penalty Standard Means New Hearings But How Many?

The U.S. Supreme court’s silence on Florida’s appeal settles it: capital cases in the state require unanimous jury sentences. But many are dubious about how state courts are applying the standard to previously settled cases and state officials remain uncertain of how far the changes reach.

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There’s finality and uncertainty in the wake of the U.S. Supreme Court’s decision not to take up Florida’s appeal in a major death penalty case. Speaking after this month’s cabinet meeting, Attorney General Pam Bondi explains moving forward, all twelve jurors will have to agree before sentencing a defendant to death.

“Going forward, I feel very comfortable we’re securing unanimous death penalty recommendations. Post-2002, meaning Ring v. Arizona, those cases will come back for resentencing but you know our laws change and evolve, and that’s part of the process.”

But for all intents and purposes, the unanimity question was put to bed months ago. By the end of last year, Bondi agreed unanimity would have to be the standard, and in the opening weeks of this year’s legislative session lawmakers moved swiftly to get a unanimous jury measure on Governor Rick Scott’s desk. The executive who has signed more death warrants than any other Florida governor signed off on the bill just as quickly.

But at the time, defense lawyers like central Florida public defender Rex Dimmig warned aspects of the state’s capital sentencing system would prompt further challenges. One of them is partial retroactivity.

“Certainly it has raised more litigation about whether or not what we call the Hurst rule should be retroactive for all cases,” he says, “because now you’ve got an equal protection argument.”

What Dimmig refers to as the Hurst rule is a state Supreme Court imposed cut-off. Put simply, inmates on Florida’s death row with non-unanimous sentences finalized after 2002 could be eligible for new hearings. The Supreme Court is going through case-by-case, and seven months on, Attorney General Bondi doesn’t know how many death row inmates could be up for review.

“We don’t, and you can’t get that through our department,” Bondi says. “It’ll probably affect hundreds of cases. Couple hundred that’s a guess though but it’s approximately a couple hundred at least is my understanding but I don’t have an exact number.”

“It’s inexcusable that she doesn’t know how many it affects in the state of Florida,” Joel Hirschhorn says.

He’s a defense attorney with nearly fifty years of experience, and he’s a shareholder in the law firm Gray Robinson.

“Could be that general Bondi declined to answer the question or hid behind I don’t know,” Hirschhorn allows, “because it might be an embarrassment the total number that it affects.”

And Nancy Abudu who heads up litigation for the American Civil Liberties Union of Florida has a similar take.

“It is absolutely the responsibility of the state to track of the concrete number of people who will benefit from this, again, this change in the law,” Abudu says. “However the onus is being put on defendants themselves, family members and public defenders some of whom haven’t dealt with these cases in decades perhaps.”

The state of Florida used to track capital cases comprehensively, but lawmakers defunded the office in 2012. The old website is still up online.

An in-depth investigation from The Villages Daily Sun and a paper written by private researchers offer their own tallies, and in one decision the Supreme Court asserts without citation approximately 45 percent of cases were finalized before the 2002 cut-off.

But there’s still no official count.

In follow up emails, Bondi’s office reiterates it doesn’t maintain a “list or totals” noting “there are several factors that impact what cases could be covered.”

North Florida state prosecutor Jack Campbell has a decent idea of how many re-hearings he’s likely to see in his circuit—probably five. But he doesn’t see a problem with Bondi not doing the same.

“When you’re actually the person who—what I say has got to be accurate—you’re much more conservative about what you put forth to the public,” Campbell says. “So, it doesn’t draw me concerns, I think that like I said earlier, I don’t know for a fact what the court is going to do on any one of these reviews and neither does she and neither do any of the defense attorneys that you’re talking about.”

This year Florida’s leaders made it clear just how serious they are about having a functional capital sentencing system. The unanimous death penalty fix was the first piece of legislation Governor Rick Scott signed into law, and just weeks later he pulled 21 murder cases from a state prosecutor who refuses to pursue the death penalty.